J. CHARGE T O JUR Y
640 . Deliberations and Completion of V erdict Forms: For Use
When Defendant Is Charged With First Degree Murder and Jury Is
Given Not Guilty Forms for Each Level of Homicide
[For each count charging murder ,] (Y/y)ou (have been/will be) given
verdict forms for guilty and not guilty of first degr ee murder (, /and)
[second degree murder] [(, /and)] [voluntary manslaughter] [(, /and)]
[involuntary manslaughter].
Y ou may consider these di f ferent kinds of homicide in whatever order
you wish, but I can accept a verdict of guilty or not guilty of
on second degr ee mur der as a lesser included offense, each form of manslaughter , voluntary and/or involuntary , on which the jury is instructed> only if all of you have found the defendant not guilty of first degree murder , [and I can accept a verdict of guilty or not guilty of (voluntary/ involuntary/voluntary or involuntary) manslaughter only if all of you have found the defendant not guilty of both first and second degree [As with all of the charges in this case,] (T o/to) return a verdict of guilty or not guilty on a count, you must all agr ee on that decision. Follow these directions befor e you give me any completed and signed final verdict form[s]. [Return the unused verdict form[s] to me, 1. If all of you agree that the People have proved beyond a reasonable doubt that the defendant is guilty of first degree murder, complete and sign that verdict form. Do not complete or sign any other verdict forms [for that count]. 2. If all of you cannot agree whether the defendant is guilty of first degree murder, inform me that you cannot reach an agreement and do not complete or sign any verdict forms [for that count]. 2. < In addition to paragraphs 1-2, give the following if the jury is instructed on second degree murder as a lesser included offense. > [3. If all of you agree that the defendant is not guilty of first degree murder but also agree that the defendant is guilty of second degree murder, complete and sign the form for not guilty of first degree murder and the form for guilty of second degree murder. Do not complete or sign any other verdict forms [for that count]. 4. If all of you agree that the defendant is not guilty of first degree murder but cannot agree whether the defendant is guilty of second degree murder, complete and sign the form for not guilty of first degree murder and inform me that you cannot reach further agreement. Do not complete or sign any other verdict forms [for that count].] 4. < In addition to paragraphs 1-4, give the following if the jury is instructed on second degree murder as the only lesser included [5. If all of you agree that the defendant is not guilty of first degree murder and not guilty of second degree murder, complete and sign the verdict forms for not guilty of both. Do not complete or sign any other verdict forms [for that count].] [5. < In addition to paragraphs 1-4, give the following if the jury is instructed on second degree murder and only one form of manslaughter (voluntary or involuntary) as lesser included offenses. > [5. If all of you agree that the defendant is not guilty of first degree murder and not guilty of second degree murder, but also agree that the defendant is guilty of ( voluntary/involuntary) manslaughter, complete and sign the forms for not guilty of first degree murder and not guilty of second degree murder and the form for guilty of (voluntary/involuntary) manslaughter. Do not complete or sign any other verdict forms [for that count]. 6. If all of you agree that the defendant is not guilty of first degree murder and not guilty of second degree murder, but cannot agree whether the defendant is guilty of (voluntary/involuntary) manslaughter, complete and sign the forms for not guilty of first degree murder and not guilty of second degree murder and inform me that you cannot reach further agreement. Do not complete or sign any other verdict forms [for that count]. 7. If all of you agree that the defendant is not guilty of first degree murder, not guilty of second degree murder, and not guilty of (voluntary/involuntary) manslaughter, complete and sign the verdict forms for not guilty of each crime. Do not complete or sign any other verdict forms [for that count].] 7. < In addition to paragraphs 1-4, give the following if the jury is instructed on second degree murder and both voluntary and involuntary manslaughter as lesser included offenses.> [5. If all of you agree that the defendant is not guilty of first degree murder and not guilty of second degree murder, complete and sign the forms for not guilty of first degree murder and not guilty of second degree murder. CALCRIM No. 640 HOMICIDE 6. If all of you agree on a verdict of guilty or not guilty of voluntary or involuntary manslaughter, complete and sign the appropriate verdict form for each charge on which you agree. You may not find the defendant guilty of both voluntary and involuntary manslaughter [as to any count]. Do not complete or sign any other verdict forms [for that count]. 7. If you cannot reach agreement as to voluntary manslaughter or involuntary manslaughter, inform me of your disagreement. Do not complete or sign any verdict form for any charge on which you cannot reach agreement.] 7. < In addition to paragraphs 1-2, give the following if the jury is not instructed on second degree murder and the jury is instructed on one form of manslaughter (voluntary or involuntary) as the only lesser included offense.> [3. If all of you agree that the defendant is not guilty of first degree murder but also agree that the defendant is guilty of (voluntary/ involuntary) manslaughter, complete and sign the form for not guilty of first degree murder and the form for guilty of (voluntary/involuntary) manslaughter. Do not complete or sign any other verdict forms [for that count]. 4. If all of you agree that the defendant is not guilty of first degree murder but cannot agree whether the defendant is guilty of (voluntary/involuntary) manslaughter, complete and sign the form for not guilty of first degree murder and inform me that you cannot reach further agreement. Do not complete or sign any other verdict forms [for that count]. 5. If all of you agree that the defendant is not guilty of first degree murder or (voluntary/involuntary) manslaughter, complete and sign the verdict forms for not guilty of each crime. Do not complete or sign any other verdict forms [for that count].] 5. < In addition to paragraphs 1-2, give the following if the jury is instructed on both voluntary and involuntary manslaughter, but not second degree murder, as lesser included offenses .> [3. If all of you agree that the defendant is not guilty of first degree murder, complete and sign the form for not guilty of first degree 4. If all of you agree on a verdict of guilty or not guilty of voluntary or involuntary manslaughter, complete and sign the appropriate verdict form for each charge on which you agree. You may not find the defendant guilty of both voluntary and involuntary manslaughter [as to any count]. Do not complete or sign any HOMICIDE CALCRIM No. 640 other verdict forms [for that count]. 5. If you cannot reach agreement as to voluntary manslaughter or involuntary manslaughter, inform me of your disagreement. Do not complete or sign any verdict form for any charge on which you cannot reach agreement.] New January 2006; Revised April 2008, August 2009 BENCH NOTES Instructional Duty In all homicide cases in which the defendant is charged with first degree murder and one or more lesser of fense is submitted to the jury , the court has a sua sponte duty to give this instruction or CALCRIM No. 641, Deliberations and Completion of V er dict Forms: For Use When Defendant Is Char ged W ith First Degree Mur der and Jury Is Given Only One Not Guilty V er dict Form for Each Count; Not to Be Used When Both V oluntary and Involuntary Manslaughter Ar e Lesser Included Offenses. (See People v . A valos (1984) 37 Cal.3d 216, 228 [207 Cal.Rptr . 549, 689 P .2d 121] [must instruct jury that it must be unanimous as to degree of murder]; People v . Dixon (1979) 24 Cal.3d 43, 52 [154 Cal.Rptr . 236, 592 P .2d 752] [jury must determine degree]; People v . Breverman (1998) 19 Cal.4th 142, 162 [77 Cal.Rptr .2d 870, 960 P .2d 1094] [duty to instruct on lesser included of fenses]; People v . Dewberry (1959) 51 Cal.2d 548, 555-557 [334 P .2d 852] [duty to instruct that if jury has reasonable doubt of greater of fense must acquit of that charge]; People v . Fields (1996) 13 Cal.4th 289, 309-310 [52 Cal.Rptr .2d 282, 914 P .2d 832] [duty to instruct that jury cannot convict of a lesser of fense unless it has concluded that defendant is not guilty of the greater of fense]; Stone v . Superior Court (1982) 31 Cal.3d 503, 519 [183 Cal.Rptr . 647, 646 P .2d 809] [duty to give jury opportunity to render a verdict of partial acquittal on a greater of fense], clarified in People v . Marshall (1996) 13 Cal.4th 799, 826 [55 Cal.Rptr .2d 347, 919 P .2d 1280] [no duty to inquire about partial acquittal in absence of indication jury may have found defendant not guilty of greater of fense].) In Stone v . Superior Court, supra, 31 Cal.3d at p. 519, the Supreme Court suggested that the trial court provide the jury with verdict forms of guilty/not guilty on each of the charged and lesser offenses. The court later referred to this “as a judicially declared rule of criminal procedure.” ( People v . Kurtzman (1988) 46 Cal.3d 322, 329 [250 Cal.Rptr . 244, 758 P .2d 572].) However , this is not a mandatory procedure. If the court chooses to follow the procedure suggested in Stone, the court may give this instruction or CALCRIM No. 642, Deliberations and Completion of V er dict Forms: For Use When Defendant Is Char ged W ith Second Degr ee Mur der and Jury Is Given Not Guilty Forms for Each Level of Homicide , in place of this instruction. The court should tell the jury it may not return a guilty verdict on a lesser included CALCRIM No. 640 HOMICIDE of fense unless it has found the defendant not guilty of the greater of fense. ( People v . Fields, supra, 13 Cal.4th at pp. 310-31 1.) If the jury announces that it is deadlocked on the greater of fense but, despite the court’ s instructions, has returned a guilty verdict on the lesser included of fense, the court should again instruct the jury that it may not convict of the lesser included of fense unless it has found the defendant not guilty of the greater of fense. ( Ibid. ) The court should direct the jury to reconsider the “lone verdict of conviction of the lesser included of fense” in light of this instruction. ( Ibid. ; Pen. Code, § 1 161.) If the jury is deadlocked on the greater of fense but the court nevertheless records a guilty verdict on the lesser included of fense and then discharges the jury , retrial on the greater of fense will be barred. ( People v . Fields, supra, 13 Cal.4th at p. 307; Pen. Code, § 1023.) If, after following the procedures required by Fields , the jury declares that it is deadlocked on the greater of fense, then the prosecution must elect one of the following options: (1) the prosecutor may request that the court declare a mistrial on the greater of fense without recording the verdict on the lesser of fense, allowing the prosecutor to retry the defendant for the greater of fense; or (2) the prosecutor may ask the court to record the verdict on the lesser of fense and to dismiss the greater of fense, opting to accept the current conviction rather than retry the defendant on the greater of fense. ( People v . Fields, supra, 13 Cal.4th at p. 311.) The court may not control the sequence in which the jury considers the various homicide of fenses. ( People v . Kurtzman, supra, 46 Cal.3d at pp. 330-331.) Do not give this instruction if felony murder is the only theory for first degree murder . ( People v . Mendoza (2000) 23 Cal.4th 896, 908-909 [98 Cal.Rptr .2d 431, 4 • Lesser Included Of fenses-Duty to Instruct. Pen. Code, § 1 159; People v . Br everman (1998) 19 Cal.4th 142, 162 [77 Cal.Rptr .2d 870, 960 P .2d 1094]. • Degree to Be Set by Jury . Pen. Code, § 1 157; People v . A valos (1984) 37 Cal.3d 216, 228 [207 Cal.Rptr . 549, 689 P .2d 121]; People v . Dixon (1979) 24 Cal.3d 43, 52 [154 Cal.Rptr . 236, 592 P .2d 752]. • Reasonable Doubt as to Degree. Pen. Code, § 1097; People v . Morse (1964) 60 Cal.2d 631, 657 [36 Cal.Rptr . 201, 388 P .2d 33]; People v . Dewberry (1959) 51 Cal.2d 548, 555-557 [334 P .2d 852]. • Conviction of Lesser Precludes Re-trial on Greater . Pen. Code, § 1023; People v . Fields (1996) 13 Cal.4th 289, 309-310 [52 Cal.Rptr .2d 282, 914 P .2d 832]; People v . Kurtzman (1988) 46 Cal.3d 322, 329 [250 Cal.Rptr . 244, 758 P .2d • Court May Ask Jury to Reconsider Conviction on Lesser Absent Finding on Greater . Pen. Code, § 1161; People v . Fields (1996) 13 Cal.4th 289, 310 [52 Cal.Rptr .2d 282, 914 P .2d 832]. • Must Permit Partial V erdict of Acquittal on Greater . People v . Marshall (1996) 13 Cal.4th 799, 826 [55 Cal.Rptr .2d 347, 919 P .2d 1280]; Stone v . Superior HOMICIDE CALCRIM No. 640 Court (1982) 31 Cal.3d 503, 519 [183 Cal.Rptr . 647, 646 P .2d 809]. • Involuntary Manslaughter Not a Lesser Included Of fense of V oluntary Manslaughter . People v . Orr (1994) 22 Cal.App.4th 780, 784-785 [27 Cal.Rptr .2d 553]. 5 W itkin & Epstein, California Criminal Law (4th ed. 2012) Criminal T rial, § 713. 4 Millman, Sevilla & T arlow , California Criminal Defense Practice, Ch. 85, Submission to Jury and V er dict , § 85.20 (Matthew Bender). 6 Millman, Sevilla & T arlow , California Criminal Defense Practice, Ch. 142, Crimes Against the Person , §§ 142.01[3][e], 142.02[3][c] (Matthew Bender). CALCRIM No. 640 HOMICIDE Page last reviewed May 2024 Cornell Law professor Michael C. 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